The Institute Of Chartered … vs J.R. William Singh on 24 January, 2020

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Supreme Court of India
The Institute Of Chartered … vs J.R. William Singh on 24 January, 2020Author: Ashok Bhushan

Bench: Ashok Bhushan, M.R. Shah

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 200 OF 2020

The Institute of Chartered Accountants of India .. Appellant

Versus

J.R. William Singh .. Respondent

JUDGMENT

M. R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 05.02.2019 passed by the Division

Bench of the High Court of Delhi in LPA No. 245 of 2018, by which

the Division Bench of the High Court has allowed the said appeal

preferred by the respondent herein and has quashed and set aside

the judgment and order dated 02.04.2018 passed by the learned

Single Judge of the High Court and consequently has directed the
Signature Not Verified

Digitally signed by
ARJUN BISHT

appellant herein to grant the respondent herein­original appellant
Date: 2020.01.24
16:49:31 IST
Reason:

the pay scale and designation of a Section Officer with effect from
 2

05.03.1993 and the pay scale and designation of an Executive

Officer with effect from 05.03.2002 under the Time­Bound

Promotion Scheme (hereinafter referred to as the TBPS) on notional

basis since the respondent had already superannuated, the original

respondent­ Institute of Chartered Accountants of India (for short

“ICAI”) has preferred the present appeal. By the impugned

judgment and order, the Division Bench of the High Court has also

directed the appellant to pay the arrears of salary and emoluments

to the respondent, as revised for the aforesaid scales from time to

time.

2. The facts leading to the present appeal in nutshell are as

follows:

That the respondent herein was appointed as an ‘Electrician’

on terms and conditions mentioned in the order of

appointment/letter dated 26.02.1974. That, by the office

memorandum dated 01.05.1976, the respondent was confirmed in

the permanent post of ‘Electrician’ with effect from 16.04.1976.

That the respondent was also released the increments from time to

time. That a settlement dated 10.01.1984 was reached between the
 3

appellant­Institute and its Employees’ Association with respect to

time bound promotions/change to the next grade. The said

settlement was to take effect from 01.01.1984. According to the

appellant, the said TBPS was applicable to only two categories of

employees, namely, Peons/Chowkidars/Sweepers (Class IV) and

LDC to Executive Officers Grade (Class III). In the said settlement,

under Clause 1(v) it was further provided that the decision in

respect of cases not falling under the two broad categories referred

to hereinabove, e.g. Jamadar, Drivers, Gestetner Operators,

Electricians, Electrical Foreman and Library Attendant will be taken

up by the President. It appears that thereafter and in light of

Clause 1(v) of the memorandum of settlement dated 10.01.1984, a

decision was taken by the President of the appellant Institute on

25.02.1984, by which it was provided that Jamadar, Drivers,

Gestetner Operators, Electricians etc., as mentioned in Clause 1(v)

of the memorandum of settlement dated 10.01.1984 shall only be

entitled to get the next grade. That thereafter, vide office

memorandum dated 13.03.1984, the respondent was informed that

his basic pay was fixed at Rs.370/­ with effect from 01.01.1984. He
 4

was further informed with respect to the next increment.

According to the appellant, as per the settlement dated 10.01.1984

and the subsequent decision of the President dated 25.02.1984, the

respondent was given the benefit of enhancement in the salary in

the next grade. That thereafter vide office memorandum dated

08.07.1986, the appellant informed the respondent that on his

completion of 12 years of service on 04.03.1986, his pay scale has

been revised from 330­10­180­EB­12­500­EB­15­560 to the higher

scale of 425­15­500­EB­15­560­20­700­EB­25­800 with effect from

05.03.1986 and that his basic pay has been fixed at Rs.425/­ in

that grade. He was also informed with respect to the next

increment to fall due on 05.03.1987. It appears that thereafter

upon acceptance of the recommendations of the Fourth Pay

Commission and in accordance with the option exercised by the

respondent, the pay scale of the respondent was revised to Rs.1200­

30­1560­EB­40­2040 with retrospective effect from 01.01.1986 and

that his pay in that grade was fixed at Rs.1320/­. It appears that

thereafter in the year 1987­88, the Employees’ Association raised

certain demands. With respect to the demands raised, a
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memorandum of settlement dated 02.08.1988 was reached between

the appellant Institute and its Employees’ Association. It appears

that, in terms of the aforesaid settlement dated 02.08.1988, the

time span provided in the TBPS as mentioned in the settlement

dated 10.01.1984 came to be reduced. It appears that thereafter

the Employees’ Association raised several demands in the year

1991. With respect to the fresh demands, a memorandum of

settlement dated 15.06.1991 was reached. It appears that

thereafter the respondent vide his letter dated 12.05.1995 made a

request for promotion under the TBPS provided under the

settlement dated 02.08.1988 as well as the settlement dated

15.06.1991. According to the respondent, he was entitled to get the

promotion after expiry of seven years’ period and that his promotion

became due on 05.03.1993. Pending such representation, vide

office order dated 20.03.1996, the respondent was transferred to

Diary/Dispatch Section. He was asked to look after the work of

Diary/Dispatch Section. However, his designation came to be

continued as Electrician. That vide representation dated

15.11.1999 the respondent requested the Secretary of the appellant
 6

Institute for promoting him to the post of Section Officer. It was the

case of behalf of the respondent that he was appointed on

05.03.1974 and that he was given the higher pay scale from time to

time and that he was also given the pay scale of Assistant and

therefore he is entitled to promotion to the next promotional post

i.e. Section Officer with retrospective effect from 05.03.1993.

Thereafter, a number of representations were made. Thereafter, in

the year 2004, the respondent was transferred from the

Diary/Dispatch Section (Head Office) to HRD (Noida). In the order

dated 28.04.2004 also, the designation of the respondent was

mentioned as Electrician. The prayer of the respondent to promote

him to the post of Section Officer under the TBPS came to be

rejected on the ground that as per the settlement dated 10.01.1984

and, more particularly, Clause 1(v) read with the decision of the

President dated 25.02.1984, the respondent shall not be entitled to

the promotion being an Electrician and shall only be entitled to the

next grade which has been given to him. That vide office order

dated 14.02.2005, the respondent was transferred from Noida Office

(Electrician) to Kanpur DCO (Electrician). The said transfer was
 7

opposed by the respondent. That thereafter the respondent filed a

Writ Petition (C) No. 8681 of 2005 before the High Court of Delhi,

inter alia, praying to grant him the higher scale and designation of

Section Officer and from Section Officer to the post of an Executive

Officer. He also prayed to quash and set aside the transfer orders

dated 28.04.2004 and 14.02.2005. That, during pendency of the

said petition, the respondent retired on attaining the age of

superannuation. That by the judgment and order dated

02.04.2018, the learned Single Judge of the High Court dismissed

the aforesaid writ petition. That thereafter the respondent preferred

the Letters Patent Appeal before the Division Bench of the High

Court and by the impugned judgment and order, the Division

Bench of the High Court has allowed the said appeal and has

quashed and set aside the judgment and order passed by the

learned Single Judge of the High Court and has directed the

appellant to grant the respondent the pay scale and designation of

Section Officer with effect from 05.03.1993 and the pay scale and

designation of an Executive Officer with effect from 05.03.2002
 8

under the TBPS along with the arrears of salary and emoluments,

as revised for those scales from time to time.

2.1 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the High

Court, the Institute­ICAI has preferred the present appeal.

3. Learned counsel appearing on behalf of the appellant has

vehemently submitted that the High Court has materially erred in

directing the appellant to promote the respondent to the post of

Section Officer and designation of an Executive Officer under the

TBPS. It is further submitted by the learned counsel appearing on

behalf of the appellant that the High Court has failed to appreciate

and consider the fact that the respondent being Electrician was not

entitled to the time­bound promotion in view of the

settlement/agreement dated 01.10.1984 and, more particularly,

Clause 1(v) and the decision of the President dated 25.02.1984.

3.1 Learned counsel appearing for the appellant has further

submitted that in fact in the promotional channel there was no

promotion from the post of Electrician to that of the Section Officer

and therefore there was no question of granting promotion to the
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respondent to the post of Section Officer under the TBPS. It is

further submitted by the learned counsel appearing on behalf of the

appellant that the High Court has materially erred in directing the

appellant to promote the respondent to the post of Section Officer

under the TBPS relying and/or considering the subsequent

settlements dated 02.08.1988 and 15.06.1991. It is further

submitted by the learned counsel appearing on behalf of the

appellant that the High Court has materially erred in observing that

in the subsequent settlements dated 02.08.1988 and 15.06.1991

there was no specific exclusion, as provided in the earlier settlement

dated 10.01.1984. It is submitted that in the settlement dated

02.8.1988 it has been specifically provided that the earlier

settlement dated 10.01.1984 shall be continued and/or applicable.

It is submitted that, in fact, by the subsequent settlement dated

02.08.1988, only the time gap was reduced. It is submitted that

therefore the case of the respondent was specifically covered by the

earlier settlement dated 10.01.1984 and the subsequent decision of

the President dated 25.02.1984 which was in terms of Clause 1(v) of

the said settlement.
 10

3.2 It is further submitted by the learned counsel appearing on

behalf of the appellant that, as such, the respondent was entitled to

only the next higher scale which was/were being paid to the

respondent from time to time.

3.3 It is further submitted by the learned counsel appearing on

behalf of the appellant that merely because for some time the

respondent was directed to look after the work in Diary/Dispatch

Section as a Section Officer, it cannot be said that he was

appointed/promoted as Section Officer. It is submitted that all

throughout he was continued to be an Electrician and therefore,

being an Electrician, he was not entitled to the time­bound

promotion.

3.4 It is further submitted by the learned counsel appearing on

behalf of the appellant that the High Court has materially erred in

not appreciating the fact that there was a clear distinction with

regard to the policies applicable to the employees falling in Class­III

and Class­IV categories and other employees such as Jamadars,

Electricians, Drivers etc. who fall under a special category. It is

further submitted that the employees of the aforesaid category,
 11

including the Electricians, were squarely excluded from the terms of

the agreement dated 10.01.1984. It is submitted that therefore the

Division Bench of the High Court has materially erred in allowing

the petition and in quashing and setting aside a well­reasoned

judgment and order passed by the learned Single Judge.

4. The present appeal is vehemently opposed by Ms. Tamali Wad,

learned counsel appearing on behalf of the respondent.

4.1 It is submitted by the learned counsel appearing on behalf of

the respondent that, in the facts and circumstances of the case, the

Division Bench of the High Court has not committed any error in

directing the appellant to grant promotion to the respondent under

the TBPS.

4.2 It is further submitted by the learned counsel appearing on

behalf of the respondent that, as such, the order of the President

dated 25.02.1984 was not communicated to the respondent and

therefore the same was not binding to the respondent.

4.3 It is further submitted that, even otherwise, as rightly

observed by the Division Bench of the High Court, in the

subsequent settlements dated 02.08.1988 and 15.06.1991, there
 12

was no specific exclusion with respect to the post of Electrician,

from granting the time bound promotions.

4.4 It is further submitted by the learned counsel appearing on

behalf of the respondent that, even subsequently, the respondent

was appointed as a Section Officer in the Diary/Dispatch Section

and therefore it cannot be said that the respondent continued to

serve as an Electrician. It is submitted that even the respondent

was also given the pay scale of Assistant with effect from

05.03.1996 and therefore was entitled to promotion to the next post

of Section Officer under the TBPS.

4.5 It is further submitted by the learned counsel appearing on

behalf of the respondent that if the submission/contention on

behalf of the appellant is accepted, in that case, there will be

stagnation and the respondent would never get any chance of

promotion under the TBPS, which shall be against the policy of

granting time bound promotion.

4.6 Making the above submissions, it is prayed to dismiss the

present appeal.

5. Heard learned counsel appearing for the parties at length.
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6. At the outset, it is required to be noted that the dispute is with

respect to the promotion under the TBPS. An employee is entitled

to the promotion under the TBPS only in accordance with the

scheme and the promotion to the next higher post is provided under

the TBPS. It is to be noted that, in the present case, the terms and

conditions of the service of the employees of the appellant­ICAI were

governed by the settlements/agreements arrived at from time to

time between ICAI and its Employees’ Association. The first

settlement/agreement was arrived at on 10.01.1984 which, inter

alia, provided for Time­bound promotions/change to the next grade

for its Class III and Class IV employees. It provided that if any LDC

had already completed five years in the pay­scale of Rs.260­400 he

is to be placed in the pay­scale of UDC­Steno Typist i.e. Rs.330­560

and so on. Under Clause 1(v) of the said settlement/agreement, it

was specifically provided that in respect of cases not falling under

the two broad categories i.e. Clause III and Class IV, the decision

was to be taken by the President of ICAI. This included the cases

of Jamadar, Driver and Electrician. The respondent was an

Electrician and therefore he was governed under Clause 1(v) of the
 14

settlement dated 10.01.1984. In terms of Clause 1(v) of the

settlement/agreement dated 10.10.1984 which was arrived at

between ICAI and its Employees’ Association, the President of ICAI

took a decision on 25.02.1984, by which it was provided that

Jamadars, Drivers, Electricians etc., as mentioned in Clause 1(v) of

the memorandum of settlement dated 10.01.1984, shall only be

entitled to get the next grade. Accordingly, the respondent herein

was put in the pay scale of Rs.330­560 and his basic pay was fixed

at Rs.370/­ with retrospective effect from 01.01.1984. At this

stage, it is required to be noted that the said fixation was in

accordance with the decision taken by the President of ICAI dated

25.02.1984. That, thereafter the respondent was granted the next

higher pay­scale of the grade of Assistant i.e. Rs.425­800. That,

thereafter the next settlement between ICAI and its Employees’

Association was arrived at on 02.08.1988 and thereafter in the year

1991. On a bare reading of the subsequent settlements dated

02.08.1988 and 15.06.1991 it appears that only the time gap for

promotion under the TBPS came to be reduced. According to the

respondent, there was no such clarification/clause like Clause 1(v)
 15

of the settlement/agreement dated 10.01.1984 excluding the post of

Jamadar, Electrician etc. in the subsequent settlements dated

02.08.1988 and 15.06.1991 and therefore he was entitled to

promotion to the post of Assistant and thereafter to the post of

Section Officer. The High Court in paragraph 17 has accepted the

same and has observed and held that in the subsequent

settlements dated 02.08.1988 and 15.06.1991 it was not clarified

that such of those who had earlier been covered under Clause 1(v)

of the settlement dated 10.01.1984 and who had been granted the

scale of an Assistant, would not be entitled to any further time­

bound promotion under the settlement dated 02.08.1988, or for

that matter, of the further settlement dated 15.06.1991 and

therefore in the absence of any exclusion of such of those who had

been granted the pay­scale of an Assistant, would be entitled to the

next higher pay­scale of the Section Officer on completion of

requisite years of service in terms of settlements dated 02.08.1988

and 15.06.1991. However, the High Court has not properly

considered the subsequent settlement dated 02.08.1988. The High

Court has absolutely mis­read and mis­interpreted the settlement
 16

dated 02.08.1988 when it has come to the conclusion, so stated in

paragraph 17 of the impugned judgment and order, that in the

subsequent settlement dated 02.08.1988 there is no specific

exclusion which was there under the special Clause 1(v) of the

settlement dated 10.01.1984. In the memorandum of settlement

dated 02.08.1988, the only change was with respect to the time gap

for promotion under the TBPS as per the earlier settlement dated

10.01.1984 and the period for getting the promotion under the

TBPS came to be reduced. That was the only change/modification.

In the memorandum of settlement dated 02.08.1988 it has been

specifically provided and so stated that except for and subject to the

changes made by the said settlement, namely, reduction of time

period for getting the promotion under the TBPS, all other terms

and conditions relating to the TBPS, as contained in the

settlement/agreement dated 10.01.1984, shall remain in force and

be applicable during the period of the said agreement. By a

subsequent settlement dated 15.06.1991 the period was further

reduced. Therefore, whatever was stated/provided in the

settlement/agreement dated 10.01.1984, more particularly, Clause
 17

1(v) and the subsequent decision of the President dated 25.02.1984

continued to be in operation. Therefore, those employees like the

respondent herein serving as Electricians etc. were not entitled to

any promotion under the TBPS, as contained in the

settlement/agreement dated 10.01.1984 and/or such subsequent

memorandum of settlements dated 02.08.1988 and 15.06.1991.

Being an Electrician, the respondent was already given the pay­

scale of an Assistant as per the decision of the President dated

25.02.1984, which was as per Clause 1(v) of the memorandum of

settlement dated 10.01.1984. Therefore, the High Court has

committed a grave error in observing and holding that the

respondent shall be entitled to promotion under the TBPS as per

the memorandum of settlements dated 02.08.1988 and 15.06.1991.

At the cost of repetition, it is to be noted that the employees of ICAI

were governed by the memorandum of settlement dated 10.1.1984

so far as the time­bound promotion is concerned and the

subsequent settlements dated 02.08.1988 and 15.06.1991 were in

continuation of the same. No new rights of promotion under the
 18

TBPS were conferred under the memorandum of settlements dated

02.08.1988 and 15.06.1991.

7. Now, so far as the submission on behalf of the respondent that

subsequently even the respondent was working as a Section Officer

and, therefore, shall be entitled to promotion under the TBPS to the

post of Section Officer is concerned, it is required to be noted that

as such there was no specific order of promotion promoting the

respondent to the post of Section Officer. For some time, the

respondent was directed to look after the work of Diary/Dispatch

Section. However, his designation came to be continued as

Electrician. Merely because an employee is given a temporary

charge to do a particular work of a particular post, it cannot be said

that in fact he has been promoted to the said post. At this stage, it

is required to be noted that subsequently when the respondent was

transferred in the year 2005 from Noida Office (Electrician) to

Kanpur DCO (Electrician), the respondent opposed the said transfer

contending, inter alia, that there is no post of an Electrician at

Kanpur and therefore he should be continued at Noida (Electrician).

Therefore, even on 04.03.2005, the respondent himself claimed to
 19

be the Electrician. Therefore, now it is not open to the respondent

that he was already promoted to the post of Section Officer in the

year 1996. Therefore also, the High Court has committed a grave

error in directing the appellant to promote the respondent to the

post of Section Officer under the TBPS. However, at the same time,

the respondent shall be entitled to the same salary of Section

Officer for the period during which he worked as a Section Officer

either on officiating basis and/or he was given the charge, if not

paid so far.

8. Now, so far as the submission on behalf of the respondent that

if the respondent is not promoted to the post of Section Officer

under the TBPS, in that case, the object and purpose of providing

the promotion under the TBPS, namely, to remove the stagnation at

the work place shall be frustrated is concerned, it is true that the

TBPS is intended to remove the stagnation at the work place.

However, at the same time, one cannot lose sight of the fact that the

promotion shall be governed as per the promotion scheme only. At

no point of time, Clause 1(v) of the main settlement dated

10.01.1984 and the decision of the President dated 25.02.1984 not
 20

providing any promotion under the TBPS so far as Electrician etc.

are concerned, has been challenged. It is not that there is a

complete stagnation so far as the respondent is concerned. He has

been granted the next higher grade as per the decision of the

President dated 25.02.1984 which was as per Clause 1(v) of the

main settlement dated 10.01.1984. It is to be noted that, being an

employee and the member of the Employees’ Association, the

settlement arrived at between the management and its Employees’

Association was binding on the respondent.

9. In view of the above and for the reasons stated above, we are

of the firm opinion that the impugned judgment and order passed

by Division Bench of the High Court directing the appellant to

promote the respondent to the post of Assistant and thereafter to

the post of Section Officer under the TBPS as per the memorandum

of settlements dated 02.08.1988 and 15.06.1991 cannot be

sustained and the same deserves to be quashed and set aside.

Accordingly, the impugned judgment and order passed by the

Division Bench of the High Court is quashed and set aside.

However, it is observed and directed that the respondent shall be
 21

entitled to the same salary which was being paid to the Section

Officers for the period during which he worked as a Section Officer

either on officiating basis and/or he was given the charge and the

appellant is directed to pay the same, if not paid so far. The appeal

is allowed accordingly. No costs.

………………………..J.
(ASHOK BHUSHAN)

…………………………..J.
(M. R. SHAH)
New Delhi;
January 24, 2020.